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Copyright I: "Fair Use" of Unpublished Sources

Michael Les Benedict, April 1990

When Congress revised the law of copyright in the Copyright Revision Act of 1976, librarians, archivists, and those scholars aware of copyright issues believed they had secured a significant improvement in the law as it related to scholars' use of unpublished materials. In my article "Historians and the Continuing Controversy over Fair Use of Unpublished Manuscript Materials," in the American Historical Review, October 1986, I explained the change, but I also warned that the improvement scholars had won was being threatened by trends in legal interpretation. In the three-and-a-half years since my article appeared in the AHR, the erosion I noted has continued. To the dismay of scholars and publishers, it now is clear that the courts are depriving scholars of the use of unpublished materials that the law was designed to secure. Moreover, they are restricting the right of scholars and others to quote even published material in ways that run directly against the traditional canons of scholarly writing.

In general, copyright has been a right created by statute whereby creators, their heirs, or their designees are secured the sole right to distribute their creations for a limited period of time, after which they enter the public domain. The purpose of such a law is, according to Article I, section 8 in the United States Constitution, "[t]o promote the Progress of Science and the useful Arts" by providing incentives for creators.

The copyright remains with the creator or his/her designees. It is not transferred to someone who purchases a book or magazine or who receives a letter. Although purchasers and recipients can make "personal use" of a work—copy sections for their own research, for example—they cannot republish the work, quote significant portions except under specific circumstances, make and distribute large numbers of photocopies, or do anything else that violates the creator's exclusive rights.

Because the primary purpose of copyright is to foster the dissemination of knowledge rather than to protect the property rights of the creator, the courts established exceptions to these restrictions. People could make "fair use" of a creator's work in the interest of promoting knowledge, so long as the impact on the creator's rights was not too great. Over the years the courts established factors to be weighed when judging whether a use was fair in any particular case. From the 1940s to the 1970s, when protection of property rights became progressively less important to judges compared to the promotion of other social interests, the courts defined fair use with ever greater latitude. Therefore historians and other scholars had few problems quoting or photocopying reasonable amounts from the published works of others.

A problem for scholars was that before 1976 statutory copyright and the doctrine of fair use applied only to published work. Unpublished work was subject to what was known as "common-law copyright," which guaranteed the "right of first publication" to creators and permitted no unauthorized use of unpublished work whatsoever. Moreover the right of creators and their heirs to first publication lasted forever. Unpublished works never entered the public domain. Although Congress redefined "publication" to bring under statutory copyright various creations that were not published in the traditional sense, it never redefined publication of manuscripts. Scholars, librarians, and archivists argued that donation of unpublished materials to public repositories constituted publication and thus subjected the materials to fair use, but no court ever accepted that argument and most legal commentators ignored or rejected it. Moreover it could not reasonably apply to materials donated by people who never held the copyright in them, such as recipients of letters or purchasers of manuscripts.

Despite their vulnerability at law, scholars regularly quoted and copied unpublished manuscripts. For a variety of reasons, this practice was rarely challenged. When it was, however, the potential damage to scholarship was clear. Violation of copyright entitles the copyright owner to ask that the offending work be enjoined from publication. In the best-known case, Warren G. Harding's heirs were able to prevent biographer Francis Russell from quoting Harding's love letters to his mistress. The lawsuit delayed publication of his book for several years and forced the transfer of the letters to the Library of Congress with a provision that they be closed to researchers for fifty years.

Pressed to overhaul the copyright law in light of modern technology, Congress passed the Copyright Revision Act in 1976. Scholars, librarians, and archivists urged lawmakers to clarify the status of unpublished materials and secure scholarly access to them, and Congress responded by extending statutory copyright to all materials, from the time of their creation until fifty years after the death of the creator. Unpublished materials whose creators no longer lived would be protected until fifty years after their death or 2003, whichever came later. This action extinguished "common-law copyright" and brought unpublished material within the purview of fair use in a system that, in the words of the Senate and House Reports accompanying the bill, (nos. 473 and 1476 respectively), applied "equally to unpublished works, to works published during the life of an author and to works published posthumously." Scholars, librarians, and archivists believed their right to make fair use of unpublished materials was now secure.

However, their confidence was misplaced. As I pointed out in my AHR article, the Supreme Court's decision in Harper & Row Publishers, Inc. v. Nation Enterprises, 1985 threatened to reverse scholars' gains under the 1976 law. Lower court decisions in succeeding cases have borne out the warning. If present legal trends continue, scholars' rights to quote—and possibly, although less likely, to photocopy—unpublished materials will be vulnerable to attacks by copyright owners seeking to obstruct publication of works they find distasteful, or possibly by copyright owners seeking payment for the use of unpublished material that would otherwise have little value. At the same time the courts are restricting the right to quote any material, published or unpublished, when they perceive the purpose of the quotation to be merely to make scholarship more readable. Despite the importance of rhetoric to the law, the judges seem insensible to the close relationship between style and argument. Therefore recent decisions create the possibility that scholars will have to eliminate the sort of quoting which has been a traditional part of scholarly writing.

The Nation case was a particularly unfortunate one to become the basis for the first Supreme Court assessment of the application of the doctrine of fair use to unpublished materials under the 1976 law. The case arose when The Nation secured a stolen copy of former President Gerald Ford's soon-to-be published memoirs and printed an article reporting his views of key events. The Nation's scoop led Time Magazine to cancel a contract with Ford's publisher, Harper & Row, to publish excerpts from the memoirs to coincide with the day of publication. Outraged publishers rallied to Harper & Row's side as the company sued to recover its loss.

Traditionally courts had carefully prevented authors, publishers, newspapers, and others from utilizing copyright to monopolize control of information. All that copyright protected was the author's expression—the words he or she used and sometimes the organization and other key aspects of presentation. Promotion of knowledge and the First Amendment's guarantee of free speech required a strict separation between copyrightable expression and uncopyrightable ideas, interpretations, and facts, all of which entered the public domain. The problem for Harper & Row and the judges was that the real value of Ford's memoirs did not lie in the way he expressed his perception of events but in being the first to inform the public about the perceptions themselves. Therefore The Nation had not quoted him very extensively. Under traditional legal doctrines, Ford's perceptions were not subject to copyright protection.

To compensate Ford and Harper & Row for what they clearly believed had been an egregious theft of valuable property, the majority of the justices stressed the unpublished nature of Ford's memoirs. The majority held that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." Thus the Court seemed to create a categorical presumption against fair use of unpublished material that could be interpreted to supersede the traditional balancing of different factors to determine whether a use was fair.

Moreover, to protect Ford's financial interest in being the first to inform the public of his perceptions of events, the Court muddied the distinction between fact and expression. The majority opinion defined expression to include those elements of a work "that display the stamp of the author's originality." and suggesting the law may recognize "ways in which uncopyrightable elements combine with the author's original contribution to form protected expression." Finally, the majority opinion reflected the Court's developing concern with property rights, rejecting the notion that there was any inherent conflict between creators' copyrights and the public's interest in the dissemination of knowledge. The framers intended to promote the dissemination of knowledge by providing financial incentives for creators to produce, the majority opined. The Court implied that fair use subverted the framer's goal by dissipating the incentive. Committed to protecting property rights, the majority declared that the effect of a use on the copyright owner's market was "undoubtedly the single most important element of fair use." With this language, the Court apparently rejected the trend of previous decades which, by stressing the public's interest in promoting knowledge and the arts, had made the nature of the use the most critical element.

Publishers celebrated their victory in the Nation case, but they have been dismayed by the consequences. In Salinger v. Random House, Inc., the reclusive author was able to wreck virtually Ian Hamilton's unauthorized biography. In conformity with traditional canons of biography, Hamilton quoted from unpublished letters from Salinger that recipients had deposited in various repositories. Salinger sought an injunction to prevent publication of the book until the quoted letters were eliminated. Salinger's lawyers framed his complaint in terms of the damage the publication would do to his economic interest in the letters and ability to control his artistic reputation. But Salinger's affidavit and deposition made clear that his first concern was to protect his privacy. Already intimidated, Hamilton and his publishers responded by changing the quotations to paraphrases. Moreover, probably pressured by Salinger's attorneys, at least one repository, the Ransom Humanities Research Center at the University of Texas, withheld permission to quote letters Hamilton had consulted there.

At the district court level Pierre N. Leval, a judge of great intellect and capacity, tried to contain the implications of the Nation case. He interpreted the Supreme Court to have raised only a rebuttable presumption that uses of unpublished material were unfair, pointing out that the Court had in fact weighed the traditional factors in arriving at its decision. He stressed the scholarly purpose of Hamilton's biography; distinguished between paraphrase, which he held not to infringe copyright, and the limited direct quotation that remained in the work; and he minimized the degree to which Hamilton's use of the unpublished letters lessened their financial value to Salinger or impaired his ability to control his artistic reputation. Aware of the place of direct quotation in the canons of historical scholarship and style, he stressed its role in adding accuracy, color, and vividness to historical exposition. As a result, Leval determined that Hamilton's quotation of Salinger's letters were a fair use and refused to enjoin publication of his book (Salinger vs. Random House, Inc., New York, 1986).

But a few months later, a three-judge panel of the Second Circuit Court of Appeals reversed Leval's decision in Salinger v. Random House, Inc., 1987. Once again judges expanded the definition of what was copyrightable beyond the creator's direct expression, barring "close paraphrase" and thus finding a much larger infringement than Leval. Moreover, the court dismissed traditional canons of scholarship regarding direct quotation. "[T]he biographer has no inherent right to copy the 'accuracy' or the `vividness' of the letter writer's expression. Indeed, 'vividness of description' is precisely the attribute of the author's expression that he is entitled to protect." To Hamilton's objection that such stringent rules would force him into pedestrian writing, the court responded, "[W]hen dealing with copyrighted expression, a biographer (or any other copier) may frequently have to content himself with ... a 'pedestrian' sentence. The copier is not at liberty to avoid 'pedestrian' reportage by appropriating his subject's literary devices."

While the panel dismissed traditional canons of scholarly writing, its primary stress lay on the fact Salinger's letters were unpublished. The Supreme Court's discussion in the Nation case "conveys the idea that such works normally enjoy complete protection against copying any protected expression," the judges concluded.

An effort to secure a rehearing before the entire circuit court failed. Shocked by the decision, the Association of American Publishers, which had sustained Harper & Row in the Ford memoirs case, joined Random House's effort to appeal it to the Supreme Court. But the Court refused to hear the case. Hamilton was reduced to publishing a bowdlerized version of his biography, with the story of his case superadded to increase interest. Reviews of the truncated work were lukewarm.

The reactions of legal commentators to the Salinger decision were generally critical. Even working copyright lawyers, who for years had been complaining about the latitude with which courts had construed fair use, seemed concerned. Categorical limitation of fair use of unpublished material not only eliminates the opportunity to weigh the public's interest in scholarship against the damage done to the creator's interests, it provides copyright owners with the power to suppress work in precisely the manner courts have always sought to avoid. This is a particular problem in biography, where the subject has an obvious interest in how he or she will be portrayed and where subjects' descendants desire to protect and promote the reputations of those they loved, or sometimes to diminish those whom they resent.

Copyright owners have already begun to utilize their control over quotation and close paraphrasing of unpublished material to discourage biographers whose attitudes do not coincide with theirs. In 1988 Macmillan dropped plans to publish The Binghams of Louisville, an expose of the scandal-ridden newspaper family, in part because the family threatened to sue to enjoin quotation of private letters. (The book was picked up by Crown Publishers, a Random House imprint.) Sylvia Plath's heirs refused to grant permission to Professor Linda Wagner-Martin to quote from Plath's letters and unpublished manuscripts, apparently because her manuscript did not reflect their reservations about Plath's character. Professor Wagner-Martin had to excise most of her quotations in order to publish. Ellen Wright, widow of the great black author Richard Wright, has sued to enjoin publication of a biography of her husband, because the biographer would not submit her manuscript to her for approval, citing the unauthorized quotation of six letters as grounds.

Moreover, publishers have become gun-shy. After Simone de Beauvoir's adopted daughter and heir withdrew the author's permission to publish her love letters to Nelson Algren, the Ohio State University Press rejected a biography that tried to paraphrase them, fearing that the paraphrasing went beyond "fair use." "Besides," the acquisitions editor explained, "the paraphrasing made the biography seem strange." (Alexander Holzman, in conversation with M. Les Benedict, March 9, 1990.) Other publishers are censoring manuscripts themselves. For example, while James Reston Jr.'s recent biography of John Connally was in press, Harper & Row insisted that Reston drop quotations from emotional letters Connally had sent Lyndon Johnson.

The Second Circuit Court's strictures against quoting sources merely to "enliven" writing have also taken on an ominous life of their own. Soon after the decision, Robert Craft, Igor Stravinsky's literary heir, brought suit (Craft v. Kobler, New York, 1987) to enjoin the publication of John Kobler's biography of the great composer, at least in part because Kobler alleged that Craft had ghost-written significant portions of Stravinsky's writing about his life and music. Kobler had quoted entirely from Stravinsky's published work, including Craft's edition of his letters. Craft charged infringement of his copyright. Judge Leval found that Kobler quoted Stravinsky primarily "to make a richer, better portrait of Stravinsky, and to make better reading than a drab paraphrase reduced to bare facts." The chastened Leval no longer could find this to be a fair use after the Second Circuit's Salinger decision. He issued the injunction. Insofar as this is good law, it suggests that quoted material must be closely connected to direct analysis. Quoting for the purpose of description or to illustrate a point, as has been customary among historians and other scholars since the development of modern scholarship, is now vulnerable to challenge.

Perhaps the most egregious instance of using the copyright law to censor criticism has been the Church of Scientology's barely unsuccessful attempt to suppress Russell Miller's expose Barefaced Messiah: The True Story of L. Ron Hubbard, 1988. Miller quoted extensively from Hubbard's unpublished letters and diaries to challenge Hubbard's account of a variety of events and to sustain his charge that Hubbard was dishonest, cowardly, cruel, and paranoid. As owners of the copyright in Hubbard's writings, the Church's New Era Publications International sought to enjoin distribution and further printings of the book (New Era Publications International v. Henry Holt and Co., New York, 1988). Once again the case went to Judge Leval, and once again he attempted to contain the implications of the Nation case and now Salinger. Again he denied that the courts had meant to place nearly insuperable barriers to fair use of unpublished materials; the Nation case established only a "diminished likelihood that fair use will be found in a copying of unpublished material, not impossibility." He stressed that quoting directly from Hubbard's diaries and letters was essential to prove Miller's thesis that Hubbard's character was deeply flawed. He pointed out that journalistic exposes of public figures were precisely the sort of activity traditionally granted maximum leeway to make use of copyrighted expression.

In his effort to distinguish the Hubbard biography case from the Salinger case, Leval stressed that with very few exceptions Miller had not quoted Hubbard to enliven his text but to sustain his argument. But by doing this he reconfirmed the restrictive view he had articulated in Craft v. Kobler that scholars could not continue to quote copyrighted sources for stylistic purposes. That rule is now being repeated and accepted in the legal literature, with hardly any discussion of its import for the literary quality of scholarship. Few legal analysts seem to recognize the impact this rule would have on the traditional canons of scholarly writing, which since ancient times have been suffused with the principles of rhetoric—the art of persuasion through language.

In a further effort to protect scholarship, criticism, and journalism from the worst consequences of the Salinger decision, Leval challenged the traditional view that the appropriate remedy for copyright infringement is to enjoin further distribution of the work. Wholesale injunctions for minor infringements, he worried, violate the spirit of the First Amendment. Leval found that the few infringing quotations that Miller had impermissibly used merely to "enliven" his narrative were too slight to justify an injunction. He denied the petition, leaving New Era only the alternative of suing for damages.

To the distress of the publishing community, in April of last year another three-judge panel of the Second Circuit Court Of Appeals again repudiated Leval's opinion, although it refused to issue the injunction on the grounds that New Era had waited too long to ask for it (New Era Publications International v. Henry Holt & Co., New York, 1989). Writers are precluded from quoting unpublished material, whether for the purpose of enlivening the text or sustaining an argument the court insisted. The fact that the general purpose of the use is scholarly, journalistic, or critical cannot outweigh the fact that such quotation usurps the copyright owner's right of first publication and damages the potential market for his work. If the Church's publishing company had sought the injunction promptly, the circuit court would have granted it. In the absence of the delay, Leval should have issued the injunction even for the small amount of quotation he did find to have infringed New Era's rights.

Despite the fact their clients had technically won the case, Holt's lawyers urgently petitioned the full Second Circuit Court Of Appeals to rehear the panel's decision en banc, complaining that the decision indicated that there is no circumstance in which quotation of unpublished material will be deemed fair use by the courts, despite the formal concession that fair use applies to unpublished materials. Last August, a bitterly divided court denied the petition by a seven to five decision, unusual in generating a written dissent by four of the judges in the minority (New Era Publications International v. Henry Holt Co., New York, 1989). The dissent in turn precipitated a tough rejoinder from four of the judges in the majority. Not only did the majority affirm that an injunction always lies for copyright infringement, no matter how trivial, but it went beyond the language of the prior opinions, now explicitly interpreted the Nation case to mean that quotation of unpublished materials "very rarely" can be fair use. Indeed, "fair use is never to be liberally applied to unpublished copyrighted material, even if the work is a matter of ... high public concern."

Again Henry Holt & Company had technically won the case because the court had rejected the New Era's petition for an injunction, and again it appealed, petitioning the Supreme Court to review the case. Thoroughly alarmed, the Association of American Publishers, the PEN American Center, the Authors Guild, and five major scholarly associations, including the American Historical Association, filed amicus curiae briefs in support of the petition, despite doubts the Court would agree to review a case on the petition of the winner. As expected, in February 1990 the Court rejected the petition.

If reaction to the circuit court's Salinger decision among legal scholars was generally negative, reaction to its Hubbard decision is likely to be more so. Trenchant criticism has already appeared in the daily New York Law Journal and the weekly National Law Journal. Judge Leval has taken the unusual step of criticizing the Second Circuit Court's opinions in a public lecture before the Copyright Society of the United States of America. Judges had been importing "extraneous, often sentimental considerations" into copyright decisions, he complained. "We must not consider fair use as a bizarre, occasionally tolerated exception to the grand design of the copyright monopoly." Publishers are even more concerned. Publishers Weekly has followed the decisions closely. Critical articles have appeared in the Wall Street Journal (authored by Arthur M. Schlesinger) and Newsweek.

The Chronicle of Higher Education published a more upbeat article, noting that few authors had yet been effected. But in fact one suit after another has been filed. The most recent has been instituted by Richard Nixon's press secretary, Ron Nessen, who is suing his ex-wife for having published extracts from his unpublished letters in a recent article in The Washingtonian magazine. At the same time, the Church of Scientology has been able to secure an injunction against another expose of its founder, this time successfully arguing that its author had used Hubbard's published work merely to enliven his own (New Era Publications International v. Carol Publishing Group, New York, 1990). The judge particularly objected to using quotations from Hubbard's work to introduce each chapter. Ignoring the rhetorical purpose served by such traditional literary devices, the only purpose he could discern was to enliven and entertain.

The recent decisions not only raise the danger of private censorship, they provide an opportunity for owners of copyright in essentially valueless unpublished materials to demand payment from scholars for permission to use them. The danger is greater to publications of unpublished materials that do have market value, such as microfilm and hardcover editions of the private papers of the presidents and other persons of stature. These will not be in the public domain until 2003 at the earliest. Less sanguine than the Chronicle, Newsweek, in the December 25, 1989 issue, has called the recent decisions "extraordinary..., placing restrictions on freedom of expression virtually unknown in libel or national-security issues." The Nation, which in many ways precipitated the crisis, has urged Congress to repair the damage.

Publishers, scholars, and other authors can hope that the dissenters on the second circuit will be able to deflect the court's present course or that the Supreme Court will agree to hear an appeal at some point in the near future. If it does not, authors, journalists, scholars, and publishers can turn to Congress. A meeting between aggrieved authors and representatives of the House Judiciary Committee has been tentatively scheduled for March. (See Page Putnam Miller's column NCC News in the May/June issue for a possible update to this meeting.) Alternatively, they can seek a more liberal opinion from another circuit court of appeals, setting up an inconsistency in copyright law that the Supreme Court will ultimately have to resolve. Finally, if all else fails, they can wait for some case of private censorship to arise that is so egregious that the courts will have to modify their course.

In the meantime a new view of copyright is solidifying in law—one that places protection of the property interests of the copyright owner ahead of the public's interest in scholarship, criticism, or investigative journalism; establishes a categorical near-prohibition upon scholarly or any other quotation of unpublished manuscript materials; and bars the rhetorical use of quotations which traditionally have made scholarly texts more immediate, interesting, and convincing. In a draft handbook, Ohio State University's copyright and patent administrator informs faculty that "virtually any unconsented copying of previously unpublished material for publication will constitute an infringement, no matter how small the portion copied or how worthy the purpose." Judge Leval now concedes he was wrong when he held quoting for the purpose of enlivening and enriching scholarship to be fair use in Salinger.

These developments mean that historians researching questions on the recent past must be cautious in their use even of published copyrighted sources, and certainly in their use of unpublished sources. If they are critical of the authors of those sources, they are vulnerable to private censorship through the copyright law. If they are studying the thought of particular individuals, they may be enjoined from quoting unpublished sources and face legal harassment for using published ones. Editors compiling unpublished papers for publication should be prepared for trouble.

Even historians simply quoting unpublished material in the customary way may run into problems. Until 2003 or fifty years after the death of the author of any manuscript, whichever comes later, publishers will be vulnerable to virtual blackmail by literary heirs, who can take steps to obtain injunctions against further distribution of any publication that makes even minimal use of protected unpublished material.

Despite these dangers, most historians ought not to abandon traditional modes of scholarly writing, and we must urge publishers not to over-react. At present the dangers are largely potential. They are most real for controversial works in which living or recently deceased actors play major roles. When deciding how to adjust to the new legal situation, historians and their publishers should weigh the risks involved in each individual case.

Of course it is unlikely that such a situation will continue for ever. At some point, the law will be modified either by Congress or the courts to conform to the traditional canons of scholarship and the intent of the Revision Act of 1976. But until then historians and other scholars face a period of uncertainty. Our professional associations must act vigorously to protect the public's interest in knowledge and criticism.

—Michael Les Benedict is a professor of history in the Department of History at The Ohio State University. Professor Benedict is parliamentarian for the AHA and has published extensively on American constitutional and political history.